Limited Judicial Notice of a Witness’s Prior Competency Finding and Strict Appellate Rules for Rule 37 Motions: United States v. Vázquez‑Rijos

Introduction

This commentary analyzes the First Circuit’s affirmance of murder-for-hire convictions in United States v. Vázquez‑Rijos, a complex, multi-defendant prosecution arising from the 2005 killing of Canadian entrepreneur Adam Anhang Uster in Old San Juan. The defendants—Aurea Vázquez Rijos (the victim’s wife), her sister Marcia Vázquez Rijos, and Marcia’s boyfriend José Ferrer Sosa—were convicted after a joint federal trial relying heavily on the testimony of cooperating witness Alex “El Loco” Pabón Colón, the admitted killer.

The appeal presented a sprawling array of issues—sufficiency of the evidence, severance, evidentiary rulings (including “flight” evidence and emails), allegations of judicial bias, constructive amendment and variance, the “death resulted” sentencing element under 18 U.S.C. § 1958, and a suite of post-trial challenges focused on Pabón’s mental health tied to Criminal Rule 37 (indicative rulings) and appellate procedure.

Two holdings stand out for their precedential significance:

• The court approved a district judge’s use of judicial notice to inform the jury—pursuant to Federal Rule of Evidence 201—that the same judge had found the cooperating witness competent to plead guilty in 2008, emphasizing the distinction between “competency” (a judicially determined legal status at a prior proceeding) and “credibility” (a jury question at trial). A robust dissent warned that this kind of notice risks judicial bolstering.
• The court clarified appellate procedure for Criminal Rule 37 practice: a separate, timely notice of appeal is required to challenge a district court’s denial of an indicative ruling. Stays and status orders do not toll the deadline, and the claim-processing rule of Appellate Rule 4(b)(1) will be enforced when the government raises timeliness in its opening brief.

Summary of the Opinion

The First Circuit affirmed the convictions and life sentences of all three defendants. Major holdings include:

• Sufficiency: Pabón’s testimony, though vigorously attacked, was not “facially incredible” and could alone sustain conspiracy convictions; credibility is for the jury.
• Interstate commerce element (§ 1958): Intrastate use of facilities of interstate commerce (like phones or vehicles) satisfies the statute, reflecting the 2004 amendment changing “in” to “of” interstate commerce.
• Severance: No manifest abuse of discretion in denying severance given the strong preference for joint trials in conspiracy cases and effective limiting instructions.
• Evidentiary rulings: Admission of flight evidence (assumed harmless if error), emails (relevance and Rule 403 balance upheld; third-party statements used for context, not truth), and murder-scene visuals (prosecution’s right to present narrative) was affirmed.
• Judicial bias: The court rejected claims that the judge acted as an advocate; curative instructions and the judge’s authority to manage trial flow were sufficient safeguards.
• Judicial notice—competency finding: No abuse of discretion in taking judicial notice that in 2008 the judge found Pabón competent to plead guilty; the notice was time- and issue-limited, and jurors received 201(f) and credibility instructions. A dissent would vacate as to Marcia and José.
• Constructive amendment/variance: No constructive amendment; any variance was not prejudicial given notice of the conspiracy manner-and-means and overt acts.
• “Death resulted” element (§ 1958): Any omission of a specific jury finding was harmless beyond a reasonable doubt because death was charged, conceded, and supported by overwhelming evidence.
• Post-trial mental-health litigation: Appeals from the denial of Rule 37 indicative-ruling motions were untimely; Rule 4(b)(1) applies. Additional requests for independent psychiatric evaluation, discovery, and hearings failed due to waiver, lack of development, or because materials were outside the record on direct appeal.

Analysis

Precedents Cited and Their Role

• Cooperating witness sufficiency: United States v. Velazquez‑Fontanez (1st Cir. 2021) confirms that a single cooperating witness, if not facially incredible, can support conviction.
• Interstate commerce under § 1958: United States v. Fisher (1st Cir. 2007) explains the 2004 amendment to “facility of interstate commerce,” aligning with the prevailing view that intrastate use suffices.
• Severance: Zafiro v. United States (U.S. 1993) and United States v. Houlihan (1st Cir. 1996) articulate strong preference for joint trials, particularly in conspiracies, and the high bar to show “extreme prejudice.”
• Flight evidence caution: United States v. Benedetti (1st Cir. 2005) warns that flight is equivocal unless supported by extrinsic evidence of guilt—but here any error was harmless.
• Context statements not hearsay: United States v. Cruz‑Díaz (1st Cir. 2008) allows third-party statements to provide context for a defendant’s responses.
• Judicial notice and juries: Fed. R. Evid. 201(b), (f); United States v. Bello (1st Cir. 1999) and United States v. Dávila‑Nieves (1st Cir. 2012) underscore that jurors must be told they may accept or reject judicially noticed adjudicative facts in criminal cases.
• Judicial involvement and bias: Liteky v. United States (U.S. 1994), United States v. Caramadre (1st Cir. 2015), and United States v. Lanza‑Vázquez (1st Cir. 2015) recognize judicial authority to manage trial, with admonitions that impatience or sharpness does not equal bias absent serious prejudice.
• Constructive amendment/variance: United States v. Katana (1st Cir. 2024) and United States v. Condron (1st Cir. 2024) frame the constructive amendment/variance doctrines; United States v. Marrero‑Ortiz (1st Cir. 1998) allows proof beyond enumerated overt acts.
• Apprendi/Alleyne harmlessness: United States v. Pizarro (1st Cir. 2014) permits harmless-error affirmance where an omitted aggravator is uncontested and overwhelmingly proved.
• Rule 37 procedure and timeliness: United States v. Rivera‑Carrasquillo (1st Cir. 2019) and United States v. Graciani (1st Cir. 1995) clarify that a separate, timely notice of appeal is required to challenge denial of a Rule 37 motion; Rule 4(b)(1) deadlines are mandatory when raised by the government.

Legal Reasoning

1) Sufficiency and the Role of a Cooperating Witness

Applying de novo sufficiency review favoring the government’s plausible view of the record, the court held that Pabón’s direct identification of all three as hirers in the murder-for-hire plot was sufficient. Attacks on inconsistencies and his mental health were credibility issues for the jury. The court reiterated that “mere presence” is insufficient, but “culpable presence” (active discussion, planning, payment negotiations) supports conspiracy liability. The court refused to reweigh credibility, consistent with long-settled standards.

2) The § 1958 “Facility of Interstate Commerce” Element

Reviving the statutory history, the panel emphasized the 2004 shift from “in” to “of” interstate commerce. Under Fisher, intrastate use of a qualifying facility (phones, vehicles) suffices. A novel argument that Puerto Rico vehicles are per se not “facilities of interstate or foreign commerce” was deemed waived and, in any event, is contrary to the inclusive definition in § 1958(b)(2). This cements that wholly in-territory phone or vehicle use can satisfy § 1958 within the First Circuit.

3) Severance

Despite allegations of spillover prejudice from evidence more directly tied to Aurea (e.g., flight, hitman search, civil litigation), the court found no “extreme prejudice.” Carefully crafted limiting instructions directing jurors to consider each defendant and each count separately were presumed effective. The joint trial avoided repetition and inconsistency risks inherent in multiple trials where the conspiracy’s relationships were central.

4) Evidentiary Rulings

• Flight evidence: Assuming arguendo that flight evidence risked unfair prejudice under Rule 403, the court found any error harmless because of overwhelming independent proof of Aurea’s guilt (prenup motive, prior solicitations, inconsistent statements to police, and Pabón’s account).
• Emails and Rule 403: Post-offense emails were relevant (low threshold) to motive, consciousness of guilt, efforts to pay the killer, and relations among conspirators. The court rejected a categorical end-date theory for the conspiracy and held that post-offense conduct can illuminate earlier criminal agreement or knowledge.
• Third-party statements: Statements by non-parties in emails were admitted not for their truth, but to contextualize a defendant’s reactions (e.g., Marcia’s response to her brother’s accusation). Proper limiting instructions were given.
• Graphic evidence: The prosecution may tell its narrative with photos and videos absent unfair prejudice substantially outweighing probative value. The court found no abuse of discretion.

5) Judicial Conduct and Alleged Bias

The court rejected claims that the judge abandoned neutrality. Judicial questions clarifying evidence already before the jury (e.g., prenup/business stakes) were permissible, particularly with immediate curative instructions that the court had no view on the facts. Instances in which the court struck statements, withdrew questions, or gave explicit limiting instructions, together with the authority to curb repetitive questioning, sufficed to avert “serious prejudice.”

6) The Pivotal Issue: Judicial Notice of a Prior Competency Finding

The district judge took judicial notice that, at Pabón’s 2008 plea hearing, the court found him competent to enter an informed plea. The First Circuit upheld this under Evidence Rule 201:

• Adjudicative fact, not subject to reasonable dispute: The competency finding appears on the court’s own records.
• Strictly limited scope: The notice was confined to the 2008 plea-time competency, not the 2018 trial-time credibility.
• Jury prerogative preserved: The court gave Rule 201(f) instructions that jurors may accept or reject the noticed fact, and robust credibility instructions emphasizing that credibility determinations are exclusively theirs.

The panel emphasized the legal distinction between competency (a judge-made determination concerning the ability to plead or stand trial) and credibility (the jury’s assessment of believability). It noted that both sides, in closings, continued to treat Pabón’s credibility as a live factual issue, suggesting no improper “direction” of a verdict on credibility. It distinguished Raymundí‑Hernández, where the judge told jurors a defense witness’s testimony was “not relevant,” undermining the defense’s core theory; here, the notice neither deemed any trial testimony true nor removed credibility from the jury.

The Dissent: Judge Lipez would vacate as to Marcia and José. He saw the notice as judicial bolstering of the government’s key witness on the most contested trial issue—his credibility—because jurors might conflate “competent in 2008” with “reliable in 2018.” He viewed standard credibility instructions as inadequate to cure the court’s imprimatur, invoking the “great weight” jurors give a judge’s slightest intimation and relying on Raymundí‑Hernández’s caution against judicial intrusion into jury factfinding on critical credibility disputes.

7) Constructive Amendment and Variance

For Aurea, arguments that jury instructions or closing arguments altered the indictment’s terms were rejected, with the court underscoring repeated instructions that she was tried only on the original indictment. For Marcia, testimony about the El Hamburger meeting did not create a constructive amendment or prejudicial variance. Indictments need not enumerate all evidence, and the superseding indictment’s manner-and-means allegations and overt acts provided fair notice; no double-jeopardy or surprise concerns were shown.

8) “Death Resulted” Sentencing Element under § 1958

Although the jury was not given a separate interrogatory explicitly finding that “death resulted,” any error was harmless beyond a reasonable doubt. The indictments alleged death; the verdicts were “guilty as charged”; the defense repeatedly conceded that Adam died by Pabón’s hand; and the record contained overwhelming, uncontroverted evidence of death.

9) Post-Trial Mental-Health Litigation and Rule 37 Procedure

The defendants pursued post-trial relief based on Pabón’s mental health, including a 2019 BOP evaluation diagnosing schizophrenia and subsequent evaluations in 2020 and 2021 finding competency and antisocial personality disorder. The First Circuit’s procedural holdings are consequential:

• Separate, timely notice of appeal required: To appeal a district court’s denial of an indicative ruling under Criminal Rule 37, defendants must file a separate notice of appeal within Rule 4(b)(1)’s 14-day window. Prior, pending direct appeals do not subsume these collateral rulings; stays and status-report orders do not toll the time.
• Government’s timeliness objection: When the government raises Appellate Rule 4(b)(1) timeliness in its opening brief, the claim-processing rule is enforced; the appeals were dismissed as untimely.
• Merits posture on direct appeal: Unpreserved trial-level competency-to-testify challenges fail under plain-error waiver principles; requests for independent psychiatric examinations and post-conviction discovery lacked developed legal bases; materials from 2021 not in the direct-appeal record could not be considered.

Impact

• Trial practice—judicial notice and witness credibility: Within the First Circuit, district courts may take judicial notice of a prior competency finding relevant to context (e.g., acceptance of a plea), if carefully circumscribed to time and issue, paired with Rule 201(f) and credibility instructions, and without commenting on the witness’s trial truthfulness. Defense counsel seeking to avoid juror conflation should request a clarifying instruction distinguishing competency and credibility; failure to do so risks affirmance.
• Appellate practice—Rule 37 discipline: Litigants must docket a separate, timely notice to appeal the denial of an indicative ruling. Administrative stays or status-report directives do not extend the Rule 4(b)(1) clock. The government’s punctual assertion of untimeliness will be dispositive.
• Substantive § 1958 reach: The decision cements that intrastate uses of transportation and communication facilities—including in Puerto Rico—satisfy the statute, obviating border-crossing proof.
• Evidence—post-offense conduct and communications: Emails and post-crime interactions remain potent evidence of consciousness of guilt, participation, and efforts to pay or cover up. Third-party statements may be admissible for context; Rule 403 challenges face deference on appeal.
• Judicial management: Robust authority to prevent repetitive questioning, ask clarifying questions, and give curatives is reaffirmed. Bias claims require demonstration of “serious prejudice,” not merely sharp exchanges.
• Apprendi/Alleyne safety valve: Where an aggravator (like “death resulted”) is charged, conceded, and overwhelming, omitted-specific finding errors may be harmless—though best practice is to secure explicit jury findings on penalty-enhancing elements.

Complex Concepts Simplified

• Conspiracy vs. mere presence: Being present at events is not enough; the government must show knowing, voluntary agreement to commit the crime. Active planning, discussions, or facilitation convert “presence” into participation.
• Facility of interstate commerce: This is any tool of transport or communication (e.g., cars, phones). Intrastate use can suffice because such facilities are part of interstate systems.
• Judicial notice (Rule 201): Courts may tell jurors certain facts that are indisputable (e.g., docketed findings). In criminal cases, jurors must be told they are free to accept or reject the noticed fact.
• Competency vs. credibility: Competency is a legal threshold (decided by a judge) about a person’s ability to proceed (e.g., to plead); credibility is about whether to believe a witness (decided by the jury).
• Constructive amendment vs. variance: A constructive amendment changes the charged crime; a variance is a difference between what’s charged and what’s proved. A variance warrants relief only if it harms substantial rights (e.g., surprise or double-jeopardy risk).
• Rule 37 “indicative rulings”: When a case is on appeal, the trial court can say it would grant (or that there’s a substantial issue) on a new motion. If the court denies the motion, a separate, timely appeal is required to seek review of that denial.
• Brady/Giglio: The government must disclose material exculpatory (Brady) and impeachment (Giglio) evidence. Claims not preserved at trial or pursued via timely post-trial appeals can be forfeited.
• Harmless vs. plain error: Harmless error asks if the verdict would be the same beyond a reasonable doubt (or no substantial influence) absent the error. Plain error reviews unpreserved errors and requires a clear error affecting substantial rights and the proceeding’s fairness.

Conclusion

United States v. Vázquez‑Rijos is a sweeping affirmation of a high-profile murder-for-hire prosecution and a practical guide on several recurrent trial and appellate issues. Its most notable doctrinal contribution is the approval—over a forceful dissent—of a narrowly tailored judicial notice that a cooperating witness was previously found competent to plead guilty, coupled with careful instructions preserving the jury’s exclusive role on credibility. This provides trial judges with a tool to contextualize a witness’s mental-health history without crossing into impermissible vouching, provided the boundaries are kept bright.

Equally consequential is the court’s procedural directive in Rule 37 practice: defendants must file a separate, timely notice of appeal to challenge the denial of indicative-ruling motions. Stays do not toll deadlines, and the claim-processing rule will be applied when the government timely objects.

The opinion also reaffirms that intrastate use of phones or vehicles satisfies § 1958, that post-offense conduct and contextual statements can be admissible and probative, and that curative instructions and trial management tools remain trusted safeguards against claims of bias or unfair prejudice. For practitioners, the case is a blueprint on preserving issues, structuring evidentiary challenges, and navigating the post-verdict landscape with procedural precision.